Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, June 14, 2011

Note on Intestacy Benefits for Non-traditional Families

Goldrings Peter J. Harrington (2010 J.D. Candidate, St. John's University School of Law) recently published his note entitled Untying the Knot: Extending Intestacy Benefits to Non-Traditional Families by Severing the Link to Marriage, 25 J. Civ. Rts. & Econ. Dev 323 (Winter 2011). An excerpt from the introduction is below:

"All this talk about equality. The only thing people really have in common is that they are going to die." Given the inevitability of death, inheritance law should be one area of law where an individual's property rights are secure regardless of lifestyle. The Uniform Probate Code ("UPC"), the statutory inheritance model used by most states, was developed specifically to protect the succession rights of the "nuclear family." More specifically, the intestacy statutes provide a mechanism for distributing a decedent's estate in the absence of a will by effectuating the presumed donative intent. However, numerous changes to the traditional family structure have left the UPC intestacy system antiquated. As a result, the inheritance rights of non-traditional families are vulnerable.

The composition and general principle of what constitutes a family has been altered drastically over the past half-century. These changes make it clear that the domination of the nuclear family, consisting of a married, heterosexual couple and their children, is over. According to the 2000 census, there are approximately eleven million people, both same-sex and opposite-sex couples, living with an unmarried partner in the United States. This constitutes a seventy-two percent increase from the number of unmarried couples living together in the previous decade. Additionally, the number of blended families and single parent families has also increased. If this trend continues, non-traditional family units will soon comprise the majority of households in America.

In response to the changes in family structure, the UPC has chosen to selectively accommodate the needs of some non-traditional family groups. The UPC has added certain non-traditional groups, to the default intestacy scheme, such as stepchildren and adopted children. However, other groups, for example unmarried opposite-sex couples and same-sex couples, still remain absent from the statutory inheritance hierarchy. By clinging to certain conventional beliefs that are no longer applicable in contemporary society the UPC has compromised the main purpose of its intestacy scheme of presuming a decedent's donative intent.


This Note does not attempt to argue that states should universally recognize same-sex marriage or any equivalent. Rather, this Note argues that given contemporary family settings, the link between distribution and marriage established at the creation of the UPC intestacy statute is now contrary to the statute's purpose. The Note ultimately concludes that the UPC should be amended by adding "committed partner" at the top of the intestacy hierarchy, putting it on the same level as surviving spouse to include the previously disenfranchised groups. Under the new "committed partner" standard a court could ask a surviving partner to establish certain factors, such as holding yourself out to the general public as highly dedicated to one another, intermingling finances, providing continuing substantial financial support, and a shared household to determine the significance of the relationship. Additionally, the universal adoption of a registration procedure for alternative couples would help courts identify a legitimately committed relationship. These procedures would allow both same-sex couples and unmarried opposite-sex couples access to the intestate estate, while more accurately accomplishing the intestacy goal of determining true donative intent.

This article is divided into four main parts. Part I of this article will discuss the history, development, and purposes of intestacy law. It will focus on the link between the distribution scheme and the family setting, arguing that given contemporary family settings, the purpose of intestacy law is no longer being met. Part II of this article will discuss the development of laws recognizing same-sex relationships, both by the courts and by state statutes. Part II will compare same-sex relationships to traditional marriages, highlighting the common characteristics of each relationship. This comparison will support the argument that the presumptive intestate beneficiary rose from the traits these relationships are based on, not by the legal status of them. Part III will examine the arguments opposing the extension of surviving spouse benefits beyond the marital relationship and in support of denying intestacy benefits to non-married and same-sex couples. Part IV of this article will propose the adoption of a statute that establishes a list of factors for a court to consider when determining if there is a relationship that should take a superior interest in a testator's estate. The evaluation will focus on same-sex relationships as an example, in an effort to ensure that the intestacy statute is geared toward, and capable of determining, true donative intent.


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